November 14, 2011

A Metropolitan Police Department officer in charge of making sure the department's breath test machines were working properly won’t be dismissed from a lawsuit brought over inaccuracies in the machines' results.

Officer Kelvin King, according to an
opinion (PDF) released today by U.S. District Judge Rosemary Collyer, was in charge of calibrating and testing the breath test machines, known as Intoxilyzers. In 2010, city officials announced that the machines were incorrectly calibrated, causing blood alcohol level readings that were too high by about 30 percent.

The plaintiffs in the
lawsuit (PDF), filed in June 2010 in U.S. District Court for the District of Columbia, were arrested for drunk driving before the city announced the error. There were twenty plaintiffs at first, but all but five were
dismissed (PDF) because they had failed to have their convictions overturned or otherwise resolved in their favor by other means first.

The complaint alleged violations of due process under the Fifth Amendment and a violation of the right to be free from cruel and unusual punishment under the Eighth Amendment. King, individually, and the city were listed as defendants.

King moved in Aug. 2010 to dismiss the complaint against him, arguing that the plaintiffs failed to meet the standard for claiming due process violations. Collyer denied the motion, finding that the plaintiffs had not only accused King of being negligent, but also of being aware that he was improperly calibrating the machines and failing to take any steps to correct the problem.

King also claimed that he was protected against litigation because he was carrying out official duties. Collyer found that there wasn’t enough evidence to decide whether King knowingly manufactured false evidence in convicting the plaintiffs, which would mean he couldn’t be covered by qualified immunity.

Collyer did, however, dismiss the plaintiff’s Eighth Amendment claim.

Jeff Rhodes of Arlington, Va.’s Albo & Oblon, who is representing the plaintiffs, said that while his clients disagree with Collyer’s decision to dismiss the Eighth Amendment claims, “we’re obviously pleased that the case is going forward against Officer King as we think it should.”

A spokesman for the city attorney general’s office did not immediately return a request for comment.

Comments

QUESTION? If the officer responsible for checking the breathe machines were "acting under color of law"(doing his JOB), then WHY, isn't his job considered, that INCLUDED, checking those machines for accuracy and that included as FAILING to do his job?